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Gemini Trust Company, LLC v. Castiglione

United States District Court, E.D. California

June 25, 2019

GEMINI TRUST COMPANY, LLC, Plaintiff,
v.
MATTHEW PETER CASTIGLIONE, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND REMANDING ACTION TO FRESNO COUNTY SUPERIOR COURT (DOC. NO. 3)

         This matter is before the court on plaintiff Gemini Trust Company, LLC's (“Gemini Trust”) motion to remand. (Doc. No. 3.) A hearing on the motion was held on June 18, 2019. Attorney Jennifer Poochigian appeared on behalf of plaintiff. No. appearance was made on behalf of pro se defendant Matthew Peter Castiglione. Having considered the motion and the arguments of counsel, the court will grant plaintiff's motion to remand.

         BACKGROUND

         On March 15, 2019, plaintiff filed an amended petition to confirm a contractual arbitration award in the Fresno County Superior Court. (See Doc. No. 1 at 32-51.) In that petition, plaintiff alleged that defendant failed to repay plaintiff after defendant received an erroneous wire transfer in the amount of $200, 000. (Id. at 33.) Plaintiff further alleges that the parties participated in arbitration on October 29, 2018 in New York City, which resulted in an arbitration award requiring defendant to repay the erroneously transferred $200, 000, costs and expenses in the amount of $6, 786.80, and 9% interest on the $200, 000 beginning February 5, 2018. (Id.) Plaintiff's state court petition seeks a court order confirming the arbitration award and entry of judgment in accordance therewith. (Id. at 34.)

         On May 2, 2019, defendant removed the action to this federal court based on federal question jurisdiction and diversity jurisdiction. (Doc. No. 1.) On May 17, 2019, plaintiff filed the motion to remand now pending before the court. (Doc. Nos. 3-6.) Defendant did not file an opposition to the motion to remand.

         LEGAL STANDARD

         A suit filed in state court may be removed to federal court if the federal court would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Removal is proper when a case originally filed in state court presents a federal question, or where there is diversity of citizenship among the parties and the amount in controversy exceeds $75, 000. See 28 U.S.C. §§ 1331, 1332(a).

         Section 1447(c) of Title 28 of the United States Code provides that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” “The removal statute is strictly construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to the party invoking the statute.” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004) (citation omitted); see also Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) (“The defendant bears the burden of establishing that removal is proper.”). If there is any doubt as to the right of removal, a federal court must reject jurisdiction and remand the case to state court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003); see also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1118 (9th Cir. 2004).

         ANALYSIS

         Plaintiff's motion contends that this action should be remanded to state court for two reasons: (1) defendant's notice of removal is untimely; and (2) the court lacks subject matter jurisdiction over the matter because there is no federal question or diversity jurisdiction.

         A. Timeliness of Removal

         Plaintiff first argues that defendant's notice of removal was untimely filed. (Doc. No. 4 at 2.) Plaintiff relies on California Code of Civil Procedure § 1290.2, which provides that an arbitration petition is “heard in a summary way” and that “not less than 10 days' notice of the date set for the hearing on the petition shall be given.” (Id.) According to plaintiff, defendant therefore had ten days from April 3, 2019-the date he was served with the amended petition initiating the state court action-to remove the matter to federal court. (Id.) Plaintiff argues that the removal was untimely because defendant did not remove this action until May 2, 2019, more than ten days after April 3, 2019. (Id.)

         Contrary to plaintiff's contentions, § 1290.2 of the California Code of Civil Procedure does not address removal at all, and plaintiff otherwise cites no authority to support a purported ten-day deadline for removal of this action to federal court. Rather, 28 U.S.C. § 1446(b) sets the deadline by which a defendant may remove a suit filed in state court to federal court, providing a defendant thirty days from receipt of the initial pleading or from receipt of a paper, such as an amended pleading, from which it may first be ascertained that the case is one which is or has become removable. If, as plaintiff contends, defendant was served with the amended petition on April 3, 2019 (Doc. No. 4 at 2), defendant had thirty days from April 3, 2019 to timely file a notice of removal. Defendant's notice of removal was filed on May 2, 2019 and is therefore timely.

         B. Subject Matter Jurisdiction

         1. Federal ...


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